Selected Publications for Ryan Owens

Policy makers constantly face uncertainty, which makes achieving their goals problematic. To overcome, they employ tools to drive down uncertainty and make probabilistic decisions. We provide a method for scholars to assess empirically how actors make probabilistic predictions. We focus on the interactions between the executive and judicial branches, analyzing the conditions under which justices force the United States to provide them with information. Our approach generates substantive knowledge about interbranch behavior as well as a methodological innovation available to scholars who study political decision making under conditions of limited information.

The Office of the Solicitor General wins the vast majority of Supreme Court cases in which it participates. Does it enjoy a built-in advantage, or does it win because it employs experienced litigators, enjoys resource advantages, or carries the executive's sword? To answer these questions, we employ cutting edge matching methods. After matching OSG lawyers with nearly identical non-OSG lawyers in nearly identical cases we find that OSG attorneys still are more likely to win their cases. We discuss possible reasons for this built-in advantage along with some practical implications of our findings.

Elected officials have difficulty controlling politically insulated institutions, leaving the appointment process as perhaps their most effective means of influence. Yet, history shows that actors on these institutions

In recent years, the United States Supreme Court has decided fewer cases than at any other time in its recent history. Scholars and practitioners alike have criticized the drop in the Court’s plenary docket. Some even believe that the Court has reneged on its duty to clarify and unify the law. A host of studies examine potential reasons for the Court’s change in docket size, but few rely on an empirical analysis of this change and no study examines the correlation between ideological homogeneity and docket size.
In a comprehensive study, the authors analyze ideological and contextual factors to determine the conditions that are most likely to influence the size of the plenary docket. Drawing on empirical data from every Supreme Court Term between 1940 and 2008, the authors find that both ideological and contextual factors have led to the Court’s declining plenary docket. First, a Court composed of Justices who share largely the same world view is likely to hear forty-two more cases per Term than an ideologically fractured Court. Second, internal and external mechanisms, such as membership change and mandatory jurisdiction, are also important. Congress’s decision to remove much of the Court’s mandatory appellate jurisdiction is associated with the Court deciding roughly fifty-four fewer cases per Term. In short, the data suggest that ideology and context have led to a Supreme Court that decides fewer cases.
The Court’s docket is not likely to increase significantly in the near future. Unless Congress expands the Court’s mandatory appellate jurisdiction or the President makes a series of unconstrained nomi- nations to the Court that increase its ideological homogeneity, the size of the Court’s docket will remain relatively small compared to the past. Because the Court’s case selection process is an important aspect of the development of the law, this Article provides the basis for further normative and empirical evaluations of the Court’s ple- nary docket.

Given scarce resources, Supreme Court justices hear cases that maximize their auditing capacities. The authors argue that justices rely on the identity of lower court judges and the ideological disposition of lower court decisions to decide which cases to review. The authors find justices are most likely to audit disagreeable lower court decisions rendered by ideologically disagreeable panel judges and are least likely to review agreeable lower court decisions rendered by ideologically agreeable panel judges. Furthermore, when faced with the same ideologically disagreeable lower court decision, justices are less likely to review decisions made by ideological allies than those by ideological foes.

Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions, while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity in majority or concurring opinions. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

Do Solicitors General (SGs) influence how justices vote? Years of scholarship suggests that the answer is yes but has largely failed to examine what influence means and just how much influence the SG wields. The authors examine SG influence during the Court’s agenda-setting stage. They find, first, that justices follow SG recommendations even when they are completely opposed to them and, second, that law exerts a strong independent influence. Justices are significantly less likely to follow SG recommendations that contravene important legal factors.

In 2007, the U.S. Senate moved into permanent session to stop President George W. Bush from making recess appointments. This article examines this episode. We argue that Congress is only able to effectively check presidential unilateral powers when the president’s use of such powers creates high political costs for a sufficient number of members such that congressional collective action is possible. Using case studies and multivariate analysis, we show that Bush used recess appointments far more than his predecessors, creating high political costs for Senate Democrats and driving them to find an innovative way to check the power of the president.

This study builds on existing empirical separation of powers work to determine whether legislative and executive preferences constrain the Supreme Court's agenda. Its contribution comes in the form of a different modeling perspective--namely, whether judicial improvements over the status quo avoid legislative overrides. The location of the status quo vis-a-vis key pivots does not appear to factor in to the Court's agenda calculations. Regardless of whether the Court was improving the status quo policy or making it worse for Congress and the president, the Court does not appear to consider legislative overrides.

This study employs the first systematic, empirical analysis that relies on archival data to examine whether the separation of powers influences justices’ agenda votes. It spatially models how justices set the Court’s agenda under a sincere approach as well as an SOP approach and compares the competing expectations derived therefrom. The results suggest that legislative and executive preferences fail to influence justices’ votes. Across every model tested, the data show justices uninfluenced by the separation of powers. These results provide a strong rejoinder to SOP models, since the Court’s agenda stage is the most likely stage of the decision-making process to show signs of an SOP effect.

For decades, scholars have searched for data to show that Supreme Court justices are influenced not only by policy goals but also by legal considerations. Analyzing justices’ agenda-setting decisions, we show that while justices are largely motivated by policy concerns, jurisprudential considerations can prevail over their policy goals. When policy goals and legal considerations collide, policy gives way. If legal considerations and policy goals align toward the same end, law liberates justices to pursue policy. In short, we find that at the intersection of law and politics, law is both a constraint on and an opportunity for justices.

Nearly all aspects of the Supreme Court's decision making process occur outside the public eye. To study how the Court makes law and policy, scholars largely must rely upon archival materials harvested from the private papers of retired Supreme Court justices. Previous efforts to validate the reliability of these materials focus solely on the votes justices cast at the merits stage and were unable to assess the reliability of recently released papers. We examine the agenda-setting records for several justices' papers, including those of Justice Harry A. Blackmun, the justice whose papers were most recently made public. Our results suggest that Blackmun's papers are reliable and accurately archive his colleagues' agenda votes.

In the struggle to control the federal bureaucracy, presidents have an overlooked but powerful tool: the recess appointment. By making recess appointments, presidents can fill vacancies without the advice and consent of the Senate. The authors delineate three conditions that define presidential unilateral powers and demonstrate how recess appointments fit within that paradigm. Presidents, the authors argue, should be more likely to make recess appointments to important policy-making positions, namely, major independent agencies. The authors compile a data set of every civilian nomination and recess appointment between 1987 and 2004. After controlling for other factors, the authors find strong support for their theory.

We make three inter-related arguments. First, we argue that justices make probabilistic decisions when setting the Court’s agenda. They will cast their agenda votes based on the probability that the Court’s eventual decision will result in a more favorable policy than currently exists. Second, we argue that legal considerations, such as lower court conflict, judicial review, and legal importance influence justices' agenda votes. Finally, and perhaps most importantly, we argue that policy and legal considerations interactively influence justices' agenda votes. When legal considerations and policy considerations point toward the same ends, a justice is freed up to follow his or her policy goals. But when the law points toward an outcome that the justice dislikes on policy grounds, she will often follow the law despite her policy misgivings.

Over the last decade, scholars of judicial politics have benefited from a number of technological innovations that have allowed them to examine topics heretofore unstudied. We briefly touch upon another innovation that judicial scholars have recently begun to employ

The modern Senate is strapped for time. With multiple agendas to pursue simultaneously, Senators must move through legislative business efficiently. The threat of obstruction from even a single Senator, however, can make legislative business untenable. Senators know this and employ their institutional prerogatives accordingly. We find that the more extreme a member is ideologically, the more likely he or she is to return a negative blue slip. Despite a number of potential benefits, out-party centrists are less likely to engage in obstructive behavior. We suggest that this is because their ideological proximity to the President makes them more receptive to side-payments. On the other hand, partisanship uniformly trumps ideology among in-party Senators.

At the end of the “Rehnquist Court,” observers of all ideological stripes opined on the principle legacy of the era. We argue that one of the legacies of the Rehnquist Court was the increasing importance of amici curiae briefs.

For decades now, scholars of law and courts have debated the factors that influence judicial decisions. Some analysts assert that legal factors control judges’ rulings, while others believe that extra-legal factors motivate those decisions. In what follows, we clarify and contrast these two sets of factors, beginning with the legal approach and then moving to three extra-legal accounts: attitudinal, strategic, and historical institutionalism.

Enacted on September 24, 1789, the Judiciary Act of 1789 (the “Act”) is one of the most important pieces of legislation Congress ever passed. The Act performed three functions. First, it clarified Article III of the United States Constitution by creating a hierarchical federal court system. Second, it declared the Supreme Court the final court to decide issues of federal law. Finally, it triggered Marbury v. Madison, 5 U.S. 137 (1803), an immensely important case that declared the Court’s authority to review congressional acts.

Examining the systematic and private records of a former D.C. Circuit Court Judge, we examine the process by which federal circuit court judges craft legal opinions. We discover that private and contextual factors influence legal outcomes. More specifically, we find that workload considerations strongly influence circuit opinions, that some visiting and senior judges e↵ect the process di↵erently than do active circuit court judges, and that panel e↵ects play but a minimal role in the creation of opinions. In short, we move the literature on circuit court decision making forward by employing private archival material that illuminates how private and contextual features influence opinion writing and legal policy.

Many scholars argue that the separation of powers induces actors to alter their preferred policies to avoid rebuke from reviewing political institutions. We argue that actors can attempt to shield their policy choices from unfavorable review by crafting them in a manner that will increase the costs necessary for supervisory institutions to review them. We apply this theory to the U.S. Supreme Court and demonstrate how justices strategically write ambiguous opinions to attempt to circumvent unfavorable review from a politically hostile Congress. The results suggest that Supreme Court justices use the language of their decisions to protect preferred policy choices.

We address whether policymakers can attempt to prevent future decision-makers from subverting their policies. We do so by examining how the United States Supreme Court can protect its decisions from future courts that would seek to dismantle them. We argue that the Supreme Court can increase compliance with its decisions among future courts by writing clearer opinions. Clearly written majority opinions enhance the ability of external actors to detect non-compliance, thereby inducing greater future compliance among judges and courts that might concern themselves with the potential legitimacy costs of deviating from established precedent. To test this argument, we draw a random sample of Supreme Court precedents and analyze how subsequent Supreme Courts and federal circuit courts “treat” those decisions. The data show that a Supreme Court that articulates its precedents with greater clarity can increase the probability of compliance by future Supreme Courts and circuit courts, even among those courts that are ideologically predisposed to reject the precedents. Sitting justices, in short, can use opinion clarity to protect their policies. The study, overall, suggests that the transmission of legal information can serve as an important legal constraint in the federal judiciary.

In recent years, judicial nominations to lower federal courts have been blocked privately by negative blue slips returned by home state senators. We examine the conditions under which senators return these negative blue slips and whether judicial qualifications can mitigate the possible negative effects of ideological distance. We discover two results. First, consistent with existing work, ideology plays a strong role in blue slipping. Second, and more important, we find that nominee qualifications mitigate ideological extremism--but only for district court nominees. That is, while past presidents could nominate well-credentialed ideologues to the circuit courts of appeals and see them confirmed, today’s presidents cannot. In short, if presidents nominate ideologues--even those who are well qualified--to circuit courts, we will continue to observe lengthy vacancies and bitter nomination struggles between the president and Congress over those important courts.